State Supreme Court nominations: Unnecessary to ‘fix’ what’s not broken (Capitol Update)

Those familiar with Oklahoma history will remember our Supreme Court was consumed by a bribery scandal in the 1960s. At the time, Supreme Court justices were elected on a partisan ticket. All nine justices were Democrats. A key player in exposing the bribery scandal was Republican State Rep. G.T. Blankenship who, during a speech on the floor of the House, read aloud from a confession by former Justice N.S. Corn written while he was in prison. Corn implicated two other justices who, like him, had been accepting bribes, some in the form of campaign contributions, for years in numerous cases.

A reform movement to take selection of judges, who are supposed to be neutral arbiters of the law, out of elective politics, with the political contributions and commitments inherent in elections, began after Blankenship’s floor speech. The dean of the University of Oklahoma law school at the time, Earl Sneed, was a leader in the reform movement and proposed a version of the system we have today. The legislature submitted it to the people who passed the reforms in 1967. For the past 50 plus years, there has been no scandal in the appellate courts. District courts, which are still elected, have produced a few bad apples, but largely our courts are free of politics in Oklahoma.

The 1967 reform in selection of judges featured a screening process whereby potential appointees to the appellate courts apply to a Judicial Nominating Commission (JNC). After a thorough background investigation, including an investigation by the Oklahoma State Bureau of Investigation, the JNC submits three nominees, based on their judgment of the three best qualified applicants, to the governor who appoints one of the three to the court. The JNC has 15 members — six attorneys who are elected by the Bar Association, six non-attorney members who are appointed by the governor, and three additional non-attorney members who are selected, one by a majority of the commissioners, one by the President Pro Tempore of the Senate, and one by the Speaker of the House. The legislative appointments were added in 2010.

The JNC has been under attack by some in the legislature who are unhappy with Supreme Court rulings, especially on wedge political issues. The allegation has been that the court is “out of step” with the current political climate. (Interestingly, the same thing is now being said at the federal level by some Democrats). So far legislators unhappy with the JNC have been unable to muster enough support to return to electing appellate judges, eliminate the JNC, or in some way cause the selection of judges to influence the court toward their political views. So, they introduce bills to tinker with the JNC.

One such bill is Senate Bill 946, currently on general order in the House, that would make the JNC subject to the Open Meeting Act. Significantly, under the current Open Meeting Act discussions of executive agency personnel matters are held in executive session for privacy purposes. SB 946 would allow only confidential financial or background information to be discussed with candidates in executive session, but all candidate interviews would be in open meeting. Also, the JNC could only discuss the merits and qualifications of the candidates among themselves to determine which candidates will be interviewed. In selecting the nominees, interviews of candidates and discussions of their merits and qualifications would have to be in open session. This cannot help but inhibit the probing questions and frank discussion needed to make the best recommendations to the governor.

Gov. Stitt has already made two Supreme Court appointments. Gov. Fallin made one during her terms. Another Justice is retiring, and Gov. Stitt will make that appointment. If legislators will be patient, they’ll soon have the court they want without “fixing” a JNC that’s not broken. They still may or may not be happy with the rulings they get. After all, the job of the court is to follow the law, not the current political climate.



Steve Lewis served as Speaker of the Oklahoma House of Representatives from 1989-1990. He currently practices law in Tulsa and represents clients at the Capitol.

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